No. 605.
Mr. Evarts
to Mr. Fish.
Washington, October 19, 1880.
Sir: I have received your dispatch, No. 301, of the 27th ultimo, wherein, in reply to my telegram of the 25th of the same month, you communicate the details of the application of Carl Gottlieb Rau for a passport and your action thereon.
Briefly, Rau, born of naturalized parentage, in Kansas, is taken to Europe while a minor, marries and establishes himself in Switzerland; not in the country (Würtemberg) whence his father emigrated. Upon his applying to you for a passport as an American citizen, you required his definite declaration of intention to return to the United States within some certain time, basing your requirement on the ground that, under the circumstances of Rail’s birth and residence during minority, his indefinite residence abroad, without evident intent to return, amounts to self-expatriation.
The proper officers of the Department have given every attention to the case, both as reported by you, and upon the appeal and documentary evidence submitted by Mr. Rau.
It is conceived that, in applying to his case the doctrines of repatriation as tantamount under the circumstances to expatriation, you have extended the thesis you advance of Rau’s citizenship being due to his father’s naturalization beyond the point where it should rightfully rest. For, while there may be rational doubt as to whether Rau is a good citizen of the United States, sharing alike the burdens and privileges of his fellow citizens, he is still undoubtedly a citizen. Having been born here, of a naturalized father, the question of repatriation would not obtain in his case, even if he were permanently domiciled in Würtemberg his father’s place of nativity. The Department holds that for a native American to put off his national character he should put on another. Continued residence of a native American abroad is not expatriation, unless he performs acts inconsistent with his American nationality and consistent only with the formal acquirement of another nationality, and the same rule holds equally good in the case of a naturalized citizen [Page 961] of the United States who may reside abroad otherwhere than in the country of his original allegiance. Existing statutes confirm the principle by providing that citizenship shall flow to the children of American citizens born abroad, the birthright ceasing only with the grandchildren whose fathers have never resided in the United States. Foreign residence, even for two generations, is, therefore, not necessarily expatriation, in the sense of renouncing original allegiance, nor is it necessarily repatriation Unless through the conflict of laws of the respective countries and the conclusion of conventional agreements between them.
If, therefore, Mr. Rau shall make application in the usual form, fortified by affidavit and documentary evidence of his American birth, and shall show that he has not forfeited his native allegiance by assuming another, the Department conceives that he is entitled to a passport for himself and wife.
The application of Mr. Rau to this Department, through the Hon. J. W. Stone, M. C., of Michigan, was in the nature of an appeal from your action in his regard, coupled with a request that a passport should issue to him directly from the Department. The rule which has been enforced for some years is that citizens of the United States desiring to obtain passports while in a foreign country must apply to the chief diplomatic representative of the United States in that country.” There is no good reason why that rule should not be applicable now, or why action should be taken here which might imply reversal of your decision. The Department prefers to regard you as not having refused a passport to Mr. Rau, but, rather, as having, through commendable zeal in the furtherance of true American interests abroad, required of the applicant a declaration not technically necessary, either in view of his birthplace or present country of residence.
I am, &c.,